Commonwealth v. Welosky

Citation276 Mass. 398,177 N.E. 656
Decision Date10 September 1931
CourtUnited States State Supreme Judicial Court of Massachusetts


Exceptions from Superior Criminal Court, Suffolk County; G. H. W. Hayes, Judge.

One Welosky was convicted of keeping intoxicating liquor for sale. On defendant's exceptions.

Exceptions overruled.W. J. Foley, Dist. Atty., and F. J. Hickey, Asst. Dist. Atty., both of Boston, for the Commonwealth.

E. M. Shanley and G. E. Roewer, both of Boston, for defendant.

G. C. Coleman and O. Slater, both of Boston, for Massachusetts League of Women Voters, amici curiae.


As the jurors were about to be impaneled for the trial of this complaint, the defendant filed a challenge to the array. Issue of law was joined thereon. Commonwealth v. Walsh, 124 Mass. 32, 35;Provident Institution for Savings v. Burnham, 128 Mass. 458, 461. The ground on which that challenge rests is that there were no women on the lists from which the jurors were drawn. The contention in support of the challenge raises two inquiries: (1) Whether under the laws of the commonwealth the names of women ought to have been placed upon the jury lists; and (2) whether by such exclusion the constitutional rights of the defendant under the Fourteenth Amendment to the Constitution of the United States have been infringed.

Both these questions were answered in the negative by the justices in an opinion rendered to the honorable the House of Representatives in accordance with the duty imposed by part 2, c. 3, art. 2, of the Constitution. Opinion of the Justices, 237 Mass. 591, 130 N. E. 685. It has been uniformly and many times held that such opinions, although necessarily the result of judicial examination and deliberation, are advisory in nature, given by the justices as individuals in their capacity as constitutional advisers of the other departments of government and without the aid of arguments, are not adjudications by the court, and do not fall within the doctrine of stare decisis. When the same questions are raised in litigation, the justices then composing the court are bound sedulously to guard against any influence flowing from the previous consideration, to examine the subject anew in the light of arguments presented by parties without reliance upon the views theretofore expressed, and to give the case the most painstaking and impartial study and determination that an adequate appreciation of judicial duty can impel. Green v. Commonwealth, 12 Allen, 155, 164;Young v. Duncan, 218 Mass. 346, 351, 106 N. E. 1, and cases cited; Perkins v. Westwood, 226 Mass. 268, 272, 115 N. E. 411, and cases cited; Loring v. Young, 239 Mass. 349, 361, 132 N. E. 65;Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 59, 145 N. E. 262.

1. The first question to be decided is whether the statutes of this commonwealth require that the names of women otherwise qualified be placed upon jury lists so that they may be drawn for service as jurors.

It is plain that women could not rightly serve as jurors, save in the rare instances where a jury of matrons was called, under the Constitution and laws of this commonwealth prior to the adoption of the Nineteenth Amendment to the Constitution of the United States. The terms of the statute, in the light of the Constitution, express decisions, universal understanding, and unbroken practice, forbid any other view. The trial by jury of the common law and that contemplated by both the Constitution of this commonwealth and that of the United States were by a jury of twelve composed exclusively of men. Commonwealth v. Dorsey, 103 Mass. 412, 418;Capital Traction Co. v. Hof, 174 U. S. 1, 13, 19 S. Ct. 580, 43 L. Ed. 873.

The statute to be interpreted is G. L. c. 234, § 1. Its relevant language is: ‘A person qualified to vote for representatives to the general court shall be liable to serve as a juror,’ with exceptions not here material.

The words of a statute are the main source for the ascertainment of a legislative purpose. They are to be construed according to their natural import in common and approved usage. The imperfections of language to express intent often render necessary further inquiry. Statutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part, and in the light of the constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature and, on the one hand, be not unduly constricted so as to exclude matters fairly within their scope, and, on the other hand, be not stretched by enlargement of signification to comprehend matters not within the principle and purview on which they were founded when originally framed and their words chosen. General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense. Robinson's Case, 131 Mass. 376, 377,41 Am. Rep. 239;Simpson v. Story, 145 Mass. 497, 498, 14 N. E. 641,1 Am. St. Rep. 480;Duggan v. Bay State Street Railway, 230 Mass. 370, 374, 119, N. E. 757, L. R. A. 1918E, 680, and cases cited; Zoulalian v. New England Sanatorium & Benevolent Association, 230 Mass. 102, 105, 119 N. E. 686, L. R. A. 1918F, 185.

It is clear beyond peradventure that the words of G. L. c. 234, § 1, when originally enacted could not by any possibility have included or been intended by the general court to include women among those liable to jury duty. The Constitution forbade the words, ‘A person qualified to vote for representatives to the general court,’ to comprehend women. Women have been qualified to vote in this commonwealth only since the adoption of the Nineteenth Amendment to the Constitution of the United States. It is not argued in behalf of the defendant that the terms of the statutes preceding G. L. c. 234, § 1, that is to say of R. L. c. 176, § 1, and its predecessors in substantially the same words since a time before the adoption of the Constitution, could possibly have imposed jury duty upon women. The argument on this point is two-fold: (A) That the phrase of the statute is general and therefore was intended automatically to include women if their constitutional inhibitions were ever removed; and (B) that, since the General Laws were enacted in December, 1920, after the ratification of the Nineteenth Amendment, the statute was intended to include women. These arguments will be considered in turn.

A. The Nineteenth Amendment was, on August 26, 1920, proclaimed to have been duly ratified. That amendment declared that ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.’ It became forthwith binding upon the people and the several departments of this commonwealth. By its own self-executing force it struck from the Constitution of this commonwealth the word ‘male’ wherever it occurred as a limitation upon the right to vote. See articles 3 and 32 of Amendments to the Constitution of the commonwealth. Opinion of the Justices, 240 Mass. 601, 605, 135 N. E. 173;Guinn v. United States, 238 U. S. 347, 362, 363, 35 S. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124;Leser v. Garnett, 258 U. S. 130, 42 S. Ct. 217, 66 L. Ed. 505. The subsequent approval by the people of this commonwealth on November 4, 1924, of article 68 of the Amendments to the Constitution of Massachusetts, whereby the word ‘male’ as a limitation upon the right of citizens to vote was stricken from article 3 of the Amendments as amended, simply manifested the people's adoption of that principle and made our Constitution harmonious in phraseology with that of the United States; but it had no legal effect upon the right of women who were citizens of Massachusetts to vote. That had already been fixed indubitably by the ratification of the Nineteenth Amendment to the Constitution of the United States.

Statutes framed in general terms commonly look to the future and may include conditions as they arise from time to time not even known at the time of enactment, provided they are fairly within the sweep and the meaning of the words and falling within their obvious scope and purpose. But statutes do not govern situations not within the reason of their enactment and giving rise to radically diverse circumstances presumably not within the dominating purpose of those who framed and enacted them. Richardson v. Danvers, 176 Mass. 413, 414, 57 N. E. 688,50 L. R. A. 127, 79 Am. St. Rep. 120;Doherty v. Ayer, 197 Mass. 241, 244-246, 83 N. E. 677,14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355;Commonwealth v. Goldman, 205 Mass. 400, 91 N. E. 392;Sawin v. Connecticut Valley Street Railway, 213 Mass. 103, 106, 99 N. E. 952,43 L. R. A. (N. S.) 72;Ansell v. Boston, 254 Mass. 208, 210-211, 150 N. E. 167;Zoulalian v. New England Sanatorium & Benevolent Association, 230 Mass. 102, 119 N. E. 686, L. R. A. 1918F, 185.

As matter of strict and abstract verbal interpretation, apart from context, circumstances, and contemporary and antecedent history, the language of G. L. c. 234, § 1, is broad enough to comprise women. The word ‘person’ when used in an unrestricted sense includes a woman. It has been said that ‘The word ‘person,’ in its natural and usual signification, includes women as well as men.' Opinion of the Justices, 136 Mass. 578, 580;Binney v. Globe National Bank, 150 Mass. 574, 23 N. E. 380,6 L. R. A. 379. ‘The natural and obvious meaning of the word ‘person’ is a living human being.' Sawyer v. Mackie, 149 Mass. 269, 270, 21 N. E. 307;Madden v. Board of Election Commissioners, 251 Mass. 95, 98, 146 N. E. 280. The word ‘person,’ like many other words, has no fixed and rigid signification, but has different meanings dependent...

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